The judgment of the Court of Appeal in Basile v Pugh was delivered on 22 November 2024. This was an unsuccessful appeal by the Plaintiff against a decision by His Honour Judge Purcell in the County Court denying leave to extend time under Section 23A LAA in a TAC claim. We rarely see VWA/TAC cases where leave is denied because they usually receive claims and can investigate early but this was probably somewhat extreme.
Case Background
The transport accident occurred in 1998, a claim was lodged promptly following the incident by the plaintiff. He had an operated right tibia and fibula fracture involving the right ankle. In 2001, the plaintiff had a back injury from a WorkCover accident and obtained advice from two law firms, whose files have since been destroyed.
Over the years, the plaintiff's ankle pain progressed gradually but increased to the extent he saw an orthopaedic surgeon in 2018, had an arthroscope in 2019 and an arthrodesis in 2021. In 2021, he consulted ATB, who issued an OM against TAC in May. The Serious Injury (SI) certificate was received from TAC in September 2022, and common law proceedings were initiated in November 2022.
Court Findings
- Judge Purcell found Plaintiff to be unreliable with his evidence but not dishonest (paragraph 21).
- A witness named in the police report died in 2022 without giving a statement （paragraph 21） this was important because the circumstances and liability were in significant dispute as per the versions in paragraph 27, this leads to a conclusion of specific prejudice.
- Judge Purcell described Plaintiff's delay as ‘inordinate’（paragraph 22）.
- Paragraph 31 refers to the evidence unavailable such as Defendant’s photograph of Plaintiff skid marks, letters regarding property damage and a TAC investigation report from 1999, but most significantly the death of the witness.
- Whilst most contemporaneous evidence supported Plaintiff's version, it could not be tested (paragraph 36).
Key Takeaways
- It is still very difficult for TAC/VWA to succeed in opposing a Section 23A application because they received the claim form immediately but that is of course not unimpeachable when there is such a long delay, I note also that Griffiths v Nillumbik Shire Council was a WorkCover judgement against the Plaintiff regarding a 17 to 21 year delay whereas Nikitin v Fasco Australia was a successful extension application in the County Court re a 15 year delay.
- There was specific prejudice through the death of an important witness and the loss of documents, which in my view is very significant in that it would be very hard to have a fair trial.
- The Plaintiff’s delay was very substantial.
- There seemed to be an acceptance that the clock only stops ticking when common law is issued, not the OM for SI, albeit that Nikitin suggested otherwise and other cases are not totally clear on this. It certainly appears that there is a difference if time has already expired whereas lodging an OM for SI (I am still not sure whether we can say categorically that a protocols application would qualify) might stop the clock from ticking. Paragraphs 53 and 54 seem to discuss this and emphasise the fact that time had already expired well before any OM was considered.
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